Lofgren v. Polaris Industries Inc.

United States District Court, M.D. Tennessee, Nashville Division

April 30, 2018

CHRISTOPHER LARS LOFGRENv.POLARIS INDUSTRIES, INC.

ORDER

BARBARA D. HOLMES UNITED STATES MAGISTRATE JUDGE

This
matter is before the Court on a motion by Plaintiff,
Christopher Lars Lofgren (“Plaintiff” or
“Lofgren”), requesting that Defendant, Polaris
Industries, Inc. (“Defendant” or
“Polaris”), be precluded from using a document
purporting to be an unredacted portion of a Ground Accident
Investigation Report (“Safety Board Report”) in
discovery or at trial and that Defendant be sanctioned for
its prior conduct related to the Safety Board
Report.[1] (Docket No. 49).

The
Court has reviewed and considered the motion, the
parties' respective responsive filings, and exhibits and
declarations appended to the filings. For the reasons below,
Plaintiff's motion is GRANTED in part and DENIED in
part.[2]

I.
BACKGROUND

This
case arises out of an incident involving the June 30, 2015
injury of Plaintiff at Fort Campbell in Tennessee while he
was driving a vehicle manufactured by Defendant. (Docket No.
1 at 5). In response to the subject incident, the United
States Department of the Army (“Army”) conducted
two investigations. The first investigation proceeded under
Army Regulation 15-6 (see Docket No. 52-2 at 6-7), a
general investigatory regulation, which resulted in an AR
15-6 report (Docket No. 52-2 at 1-5) that was authorized for
release and produced by the Army in this litigation, not
subject to any privilege.[3] Later, an accident investigation
followed under the provisions of Army Regulation 385-10
(see Docket No. 52-3 at 24), the purpose of which is
to investigate all accidents to prevent future occurrences.
A.R. 385-10 § 3-2. This investigation resulted in a 385
Ground Incident Report, also referred to as a Safety Board
Report (Docket No. 52-3), a portion of which is at issue
here.

Counsel
for Plaintiff attempted to obtain a copy of the Safety Board
Report on February 1, 2017 by submitting a request for the
document in accordance with the Army's Touhy
regulations. (Docket No. 65-3). In response, the Army
requested that the parties submit a joint Touhy
request. (Docket No. 65 at 5). The parties followed up by
submitting a joint Touhy request on February 10,
2017 asking for, among other things, “[a] complete and
unredacted copy of the Safety Report.” (Docket No.
49-2).

Defendant
contends that, at some point after the incident but prior to
the lawsuit, a Polaris employee, whose regular job
responsibilities include acting as a point of contact between
the Army and Defendant about Polaris military products
generally, inquired of the U.S. Special Operations Command
whether any reports of the Lofgren incident were available.
(Declaration of Jed Leonard, Docket No. 65-2 at ¶¶
2-5). Defendant further contends that, at a later unspecified
date, but still before the present litigation began, the
Polaris employee received an envelope containing an
unredacted document, the first page of which has no official
heading and begins with “Findings and Recommendations
Case Number 20150630.”[4] (Id. at ¶ 6). The
envelope displayed no return address and included no cover
letter. (Declaration of Ernest H. Eubanks, Docket No. 65-4 at
¶ 5). Defendant contends that it believed the document
was received in response to its informal inquiry. (Leonard
Declaration, Docket No. 65-2 at ¶ 7).

Defendant
provided the unredacted Findings and Recommendations to
Plaintiff on April 19, 2017 as part of the discovery process
in this case. (Eubanks Declaration, Docket No. 65-4 at ¶
7). After receiving the redacted version of the entire Safety
Board Report in July 2017 (but without any other specificity
as to timing), counsel for Defendant recognized that the
findings and conclusions in the redacted Safety Board Report
resembled the unredacted Findings and Recommendations
previously received by Polaris. (Id. at ¶ 9).
Defendant maintains that the “Report”, presumably
referring to the unredacted Findings and Recommendations,
“was openly discussed by the parties and the Court
during [an] October 10, 2017 confidential settlement
conference.” Id. at ¶ 10.

According
to Plaintiff, after the settlement conference held on October
10 and a review of documents produced by Defendant in
discovery, Plaintiff's counsel likewise recognized that
the Findings and Recommendations were similar in format to
redacted sections of the Safety Board Report. (Docket No. 52
at 9).[5] Based on this review and discussions
during the settlement conference, Plaintiff's counsel
concluded that the Findings and Recommendations document
received from Defendant in discovery was an unredacted
version of some of the redacted portions of the Safety Board
Report provided by the Army. (Id.). Plaintiff's
counsel also determined that counsel for Defendant used the
unredacted Findings and Recommendations during the settlement
conference. (Id.). On October 16, 2017, counsel for
Plaintiff advised Army counsel of the existence of the
unredacted Findings and Recommendations. (Id. and
Docket No. 49-3 at 4-5).

Upon
receiving this information, Army counsel inquired on October
17, 2017 via email how Defendant obtained an unredacted copy
of the Findings and Recommendations. (Id.). In this
email, Army counsel stated that they were “not aware of
any waiver of the safety privilege in this case.”
(Id.). After hearing Defendant's version of
events, Army counsel responded by email to the parties on
October 18, 2017 and stated that “the documents you
received were released without authorization and in violation
of Army policy. I will notify the parties if the Army intends
to take action with regard to this matter.”
(Id.). Army counsel followed up with a second email
several hours later to clarify that “assuming the
documents Polaris received are authentic, they were released
without authorization and in violation of Army
policy.”[6] (Id.).

Defendant
then made additional Touhy requests on October 23,
2017. (Docket No. 49-6). Within these requests, Defendant
again asked for a complete and unredacted copy of the Safety
Board Report. (Id. at 5). On October 27, 2017,
before sending a response to Defendant's Touhy
request, Army counsel emailed the parties to communicate that
“the Army does not consider the safety privilege waived
in this case and will assert the safety privilege if and when
required to do so to protect the Army's interests.”
(Docket No. 49-4). The Army, via counsel, responded to
Defendant's additional Touhy requests on October
31, 2017. (Docket No. 49-7). The Army again declined to
produce the unredacted copy of the Safety Board Report,
stating that “Defendant's request also seeks [a
deposition], as well as a complete, unredacted copy of the
Ground Accident Investigation Report, information which falls
under the Army's safety privilege. Both requests are
therefore denied based on DOD and Army Regulations and
instructions regarding safety privilege.”
(Id.)

The
parties participated in a deposition on November 7, 2017,
where Plaintiff alleges that counsel for Defendant read from
a copy of the unredacted Findings and Recommendations.
(Docket No. 52 at 7). Prior to participating in the
deposition, counsel for Defendant advised Army counsel on
October 23, that Defendant “had not determined whether
it intended to introduce the document at some future point in
the litigation.” (Eubanks Declaration, Docket No. 65-4
at ¶ 12). This exchange occurred during the discussions
following Plaintiff's notification to the Army of the
existence of the unredacted Findings and Recommendations, and
was in response to a direct question from Army counsel to
Defendant's counsel about what use, if any, Defendant had
made of the documents “received anonymously relating to
finding[s] and recommendations in the Lofgren accident,
” and “whether or not [Defendant] intends to
attempt to introduce these documents during future litigation
of this case.” (Id.). There is no indication
that Defendant's counsel notified the Army of
Defendant's intent to use the unredacted Findings and
Recommendations during Plaintiff's November 7 deposition.

This
sequence of events, among other things, was the subject of a
discovery conference on November 13, 2017 that resulted in an
order to brief the issues. (Docket No. 45). In his motion and
accompanying memorandum of law, Plaintiff requests that the
Court decide two issues. First, whether Defendant should be
precluded from using the privileged portions of the
unredacted Findings and Recommendations, as well as all
information gleaned from that document, in discovery and at
trial in this case. Second, whether Defendant should be
sanctioned for its use of the unredacted Findings and
Recommendations, specifically whether counsel for Defendant
should be disqualified, whether Defendant's defense of
comparative fault should be stricken, or both.

In its
response, Defendant asserts that the Army has not invoked the
safety privilege and that even if the privilege was asserted,
it has been waived. Defendant maintains that, for these
reasons, Plaintiff's motion to preclude the use of the
unredacted Findings and Recommendations must be denied.
Defendant further contests that Plaintiff's request for
sanctions has any basis.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;II.
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